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The Buffalo News (New York)


Reviews have been a fact of life in the NHL all season. The league's biggest one is underway in Minnesota.

It has nothing to do with goaltender interference.

After more than four years of arguments in courtrooms, boardrooms and science labs, the concussion lawsuit brought by retired players against the NHL has finally reached a critical stage. U.S. District Judge Susan Richard Nelson has heard closing arguments from both sides, and she is deliberating whether to certify the case as a class-action lawsuit.

"It took us a long time to get here," Charles "Bucky" Zimmerman, founding partner of a law firm representing the players, said by phone Monday.

More than 100 players have joined the lawsuit since the first filing in November 2013, and they're looking to Nelson to keep them unified. If the judge rules in favor of the players, the consolidated case will continue in her Minnesota court. If Nelson rules for the NHL, each player would have to fight his own case in local courts.

There is no timetable for Nelson's decision.

"She just took all the briefs and the arguments under advisement," said Zimmerman, who isn't sure which areas Nelson will focus on most. "The briefs were extensive, and the issues were contested hotly, but I don't know what she'd be working to try and resolve in between all the varying possibilities.

"The briefs were thousands and thousands of pages - mostly the defendant's briefs were like over 7,000 pages with exhibits - so it's a massive undertaking."

At the case's core, the former players suing the NHL claim the league was negligent in its care and fraudulently concealed the long-term risks of head injuries. They are seeking medical monitoring and compensatory damages.

The subplots are plentiful. There have been scientific debates about the long-term effects of concussions, specifically whether they lead to the debilitating brain disease known as chronic traumatic encephalopathy (CTE). There have been public debates about what the NHL knows and whether it should spend money to learn more. There have been legal arguments over which state's laws should be used.

There are so many tangents that Nelson could decide only a few form a class-action lawsuit and limit the number of players involved. If she rules completely in favor of the players - including former Buffalo Sabres Mike Robitaille, Craig Muni, Grant Ledyard and the family of late defenseman Steve Montador - everyone who ever skated in the NHL would become part of the class.

"Having been involved in many class actions over the years, there's a certain group of questions that she has to ask and has to find to make the class action appropriate under federal rules of civil procedure," Zimmerman said from his Minnesota office of Zimmerman Reed. "Do individual issues predominate over class issues, or do class issues predominate over individual issues? Is there sufficient commonality of questions? There's a group of questions like that that she has to wrestle with.

"She could also consider certifying issues as opposed to the outcome of the entire case. She can consider, 'Well, maybe we'll just certify questions having to do with does the league owe the players a duty? Was there a breach of that duty?' and not necessarily certify the entire case for resolution under a class mechanism."

Nelson heard final arguments March 16. NHL Commissioner Gary Bettman stirred up the sides in April during an interview with WFAN Sports Radio in New York.

Bettman and the NHL have steadfastly denied that a link exists between repetitive brain trauma and CTE. During the interview, the commissioner said the researchers at the CTE Center at Boston University even told him they can't prove a link. The doctors, who have filed affidavits for the plaintiffs, countered that Bettman misstated their conversation.

"I'm not going to get into a public debate, particularly because we're in litigation," Bettman said on WFAN. "We believe the lawsuit is without merit."

The NHL has come under fire from hockey people not affiliated with the lawsuit. Hockey Hall of Famer Ken Dryden said the league should make all head shots illegal. Fellow inductee Eric Lindros, who previously suggested each NHL team donate $1 million for brain trauma research, said last month the league isn't doing enough.

"There are lots of organizations and people who have suggestions as to how we should be conducting things and spending money," Bettman said during the radio interview. "The fact is, most of the people don't know all of the things that we're doing with respect to player safety and particularly what we do with other organizations in the hockey world.

"The NHL spends lots of time, money and effort doing a whole host of things with respect to player safety."

Daniel Carcillo disagrees. The retired forward announced in March he would join the lawsuit because of depression, which he believes was caused by head trauma.

"It's time to help others suffering the same hell on earth that the NHL and NHLPA have created with their lack of respect for human beings that make up their league of denial," Carcillo wrote on Twitter. "You have blood on your hands. Wash it off."

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May 15, 2018


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